August 3, 2016 (Fault Lines) — One of the best federal trial judges in this country is Mark Bennett. He is also my close friend. It is true, as Mark has said, that he is an empiricist (and, I should add, a humanist). He is also profile writer about empirical questions and data derived from those empirical questions. (For example, he could explain to you in his sleep what an “R2” means!) So, it is with some trepidation that I respond to his post entitled,Are Federal Judges Addicted to Incarceration?

The answer to Mark’s titular question is, undoubtedly, “yes.” There are many reasons for this addiction. Largely, however, that addiction is due to the psychological impact of “anchoring” that occurs when using the Sentencing Guidelines, as the Guidelines call for prison sentences in the great majority of federal criminal cases. Indeed, Mark’s own scholarship on
“anchoring” makes that plain. In short, old habits die hard, particularly when a judge has no pre-Guidelines experience.

Relatedly, Mark argues, with some justification, that the Guidelines are either not empirically based or that such data was and is improperly used by the Commission. Here Mark is on shakier ground.* But, it is also true that the empirical data used by the Sentencing Commission (at the inception of the Guidelines and thereafter) is sometimes employed in a skewed fashion as a result of a force beyond the control of the Commission. By that, I mean Congress.

Having said the foregoing, I do not wish to debate the validity or the analysis of the empirical data employed by the Commission—the subject is too vast for a blog post. Nor do I want to debate theoretical proposals I have made for the broad use of empirical data from the field of criminology for use at sentencing that were based upon the research and writings of Dr. J.C. Oleson.** At this point, they are pie in the sky.

Rather, I want to be practical and get down to the here and now. That is, I want to specifically address Mark’s reference to my Federal Sentencing Reporter article*** where I suggested, among other things, that we ought to use an empirically validated risk assessment tool at sentencing similar to the one known as PCRA (Post Conviction Risk Assessment). PCRA is used in most federal courts now, but only when the offender gets out of prison and begins the supervised release stage. I believe PCRA should also be used at sentencing.

Way oversimplified, PCRA attempts to (1) ascertain the risk to reoffend and (2) develop concrete recommendations to ameliorate the risk. Four risk categories were identified based on fully validated statistical testing: low; low/moderate; moderate; and high. During the validation efforts, low and low/moderate-risk persons accounted for at least 85 percent of the cases. In other words, the great bulk of offenders fell in the lower ranges of risk to reoffend.

In the low-risk category, 8 percent of offenders have their supervision revoked, and 9 percent are re-arrested within the first 190 days from their initial assessment. Intensive interventions with this population have little impact and may increase the risk of recidivism. Typically, a low level of supervision is appropriate. The probation officer should consider low intensity supervision and eventual early termination.

In the low/moderate category, 11 percent of offenders have their supervision revoked, and 15 percent are re-arrested within the 498 to 810 days from their initial assessment. If appropriate risk factors are effectively addressed, these failure rates decline in subsequent time periods.

In the moderate category, 47 percent of offenders have their supervision revoked, and 30 percent are re-arrested within the first 190 days from their initial assessment. If appropriate risk factors are effectively addressed, these failure rates decline in subsequent time periods.

In the high-risk category, 74 percent of offenders have their supervision revoked, and 42 percent are re-arrested within the first 190 days from their initial assessment. If appropriate risk factors are effectively addressed, these failure rates decline in subsequent time periods.

Next, I want to provide an example of how one district is using PCRA. I recently returned from the District of North Dakota, where I spent three days learning how that District uses a portion of PCRA at sentencing.

Our Chief Probation Officer, her two supervisors of presentence report writers and a Guidelines specialist (a probation officer who is also trained as a lawyer) and I traveled to Fargo and met with Chief Judge Ralph R. Erickson (one of the best thinkers in the judiciary), the brilliant and highly experienced Chief Probation Officer for ND and his equally experienced and brilliant Chief Deputy (who holds a Ph.D. in criminology).

The District of North Dakota incorporates the “officers section”**** of PCRA into many of the presentence reports. This requires the presentence report writer to interview the offender and dig into his or her personal characteristics in the interview and then take a deep dive into other sources of information about the offender. After that, the presentence report writer presents the risk level of the offender and specific recommendations about how to ameliorate the likelihood of re-offense.

This information is presented in a section of the PSR that coherently and fully describes the background of the offender and what things the offender will need in order not to reoffend again. The presentence report, while containing the required Guideline calculations, looks and reads far differently as compared with a PSR that concentrates on the Guidelines.

Here are the three main things I learned from our progressive neighbors on the Canadian border:

Because an interview of the offender is critical to the proper use of PCRA, the judges in North Dakota promised the bar not to use the PCRA section to increase or decrease the prison sentence based on PCRA results. In other words, the PCRA section is used only to make better informed and specific recommendations to the Bureau of Prisons and to make much more thoughtful decisions about supervised release conditions. Criminal defense lawyers and prosecutors alike have bought into this use of PCRA. Thus, in North Dakota, interviews of offenders by probation officers are the rule, rather than the exception.

Using a portion of PCRA at sentencing requires much more investigative effort on the part of the presentence report writer. It is hard work finding the facts about how an offender ticks and then proposing realistic and concrete methods to help the offender avoid federal prison in the future. It also requires superior writing skills and “out of the box” thinking.

North Dakota presentence report writers are enthused about the use of PCRA even though they have to work harder for no increase in pay. They are no longer solely “Guardians of the Guidelines” but human beings who are truly devoted to developing concrete methods to guide the offender through prison and then on to supervised release—in other words, they feel as if they rejoined the ranks of a helping profession.

So, I come to the end. I agree with Mark that many of us are addicted to long prison sentences. But that is changing. I am convinced that the use of PCRA (at least the officer section) at sentencing as exemplified by the District of North Dakota provides us an opportunity to help offenders even when we feel compelled to impose prison sentences. It is a start, and one that founded upon a solid empirical foundation.

** Dr. J.C. Oleson was formerly Supreme Court Fellow and then Chief Counsel to the Criminal Law Policy Staff of the Administrative Office of the U.S. Courts from 2005 through 2010. He is now a tenured faculty member and Director of Research at the School of Social Sciences at the University of Auckland in New Zealand. Oleson received his Ph.D. in criminology from the University of Cambridge, and his J.D. from the law school at the University of California, Berkeley (Boalt Hall). I have come to consider Jim a good friend. I was especially pleased to present a program on the use of PCRA at sentencing with Jim to the judges of the Northern District of Florida at the request of Chief Judge Casey Rodgers, who is also a member of the Judicial Conference’s Committee on Criminal Law. She has a strong interest in using PCRA at sentencing.

*** My article, copies of all the citations (including the PCRA validation studies) and specifically including the PCRA “officer section” may be found here. Scroll down to “Other Items of Interest” and “Federal Sentencing Reporter 2014-15.” When retrieving these documents, be patient. Some documents are large, and it takes time for the server to retrieve them.

**** The “offender section” which is a fully validated 80-question instrument (sometimes called PICTS—“Psychological Inventory of Criminal Thinking Styles”) is not administered at the sentencing stage in North Dakota. Like most other districts, it is, however, used when the offender begins supervised release together with another administration of the “officer section.” In the longer term, I would hope the “offender section” (PICTS) could also be employed at the sentencing stage. I strongly believe that the offender could derive a great deal of benefit from knowing his or her pattern of thinking. But, for now, “selling” such a proposal to the bar for use at sentencing may be a bridge too far. In particular, I fear CDLs would say “hell no” to offender interviews even if they were promised that the “Criminal Thinking” information would not be used to increase prison sentences. So you don’t have to remind me with a snarky comment, I have not forgotten the 1971 movie A Clockwork Orange.

What a great thought provoking post. A few comments. I am always seriously behind the curve of Judge Rich Kopf. I have a lot to learn about PCRA and need to go to Lincoln to learn from the Judge Kopf. This may be very promising and my mind is opening to incorporating this tool in sentencing, especially if it is truly empirical and not more smoke and mirrors. Second point. Many of the things I and some other judges don’t like about the Guidelines cannot be fairly blamed on the Commission. They are responses to, as I understand it, Congressional Directives, some of which tell the Commission to look into a matter and some require them to take action. To my knowledge none of the Congressional Directives are ever based on empirical data but usually political winds. Also, I suspect the majority of specific offense characteristics (SOC’s) enhancing guidelines sentences whether pursuant to a Congressional Directive or not — are not based on empirical data. Moreover, the points assigned to the various SOC’s seem to be picked out of thin air. E.g., why is the SOC in 2D1,12(b)(4) for stealing anhydrous ammonia (a pre-cursor for a method of manufacturing meth) 6 levels and not 2 or 4, and why are not other pre-cursor chemicals that are stolen not included?; why are any the numerous (over 30) SOC’s in the fraud guideline given the points they are given and where is the empirical evidence to support any of them?

1)Any test can be gamed to some degree. I’m surprised Kaplan hasn’t published a test guide for PCRA.

2) I’ve seen you write about “crafting” a sentence , including such phrases as a “dollop of retribution” as if you were casually following a recipe for lunch. It makes me queasy when you write such stuff.
3) I know you don’t like long sentences.
4) I just cannot connect the sweet man I know with the guy who sits on the bench and hands out longer than average sentences when he need not do so.

Given these three things, and the ambiguity of the factors you are supposed to consider, erring on the side of short sentences is appropriate.

“I just cannot connect the sweet man I know with the guy who sits on the bench and hands out longer than average sentences when he need not do so.” My dear friend, you have put your finger on a button that depresses me daily. Save for the rationalizations that one may read in what I write, I, too, am afraid that I am addicted. But, what worries me much more is the loss of my soul. Thank God I don’t believe in God.

[…] Act of 1984, which birthed the dreaded United States Sentencing Guidelines. And deeper efforts, championed by Senior Nebraska Judge Richard Kopf, are still in the works, even after the Supreme Court backed off […]

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